Beavers v. Security Mutual Insurance Co.

• Decision Date: 24 June 1905
• Citation: 88 S.W. 848,76 Ark. 138
• Parties: BEAVERS v. SECURITY MUTUAL INSURANCE COMPANY
• Court: Arkansas Supreme Court

88 S.W. 848

76 Ark. 138

BEAVERS v. SECURITY MUTUAL INSURANCE COMPANY

Supreme Court of Arkansas

June 24, 1905

Appeal from Yell Ciccuit Court, WILLIAM L. MOOSE, Judge.

Motion to dismiss overruled.

R. C Bullock, for appellant.

Murphy & Mehaffy, for appellee.

OPINION

HILL, C. J.

This case is set for July 10, and appellant filed abstract and brief in apt time, and the appellee, instead of filing its abstract and brief, has invoked the ruling of the court, on the sufficiency of the abstract of appellant in a motion to dismiss for noncompliance with Rule IX.

The court cannot take time to read the record and briefs in advance of submission to settle questions determinable in the trial, and confines its ruling to the matters appearing in the motion and response thereto. The appellee says that five witnesses testified for appellant on material issues, and nineteen testified on behalf of appellee, and that the testimony is material and bearing on the issues, and that brought out by appellee on cross-examination of appellant's witnesses goes to sustain the verdict and justify the instruction, and that appellant omits this testimony and all reference to it except an excerpt from appellant's testimony. The appellant responds that he has abstracted the pleading and all other matters in the record necessary to a full understanding of all questions presented to the court. It appears that the instructions of the trial court are the matters here complained of, and appellant having set them forth fully, says this testimony is immaterial, and most of it was brought out by appellee, and that it is its duty to abstract its own testimony under the rule. In this appellant is mistaken. He must abstract the entire case, so far as it is material to the issues raised on appeal, and the rules do not contemplate that each side abstract its own version of the case, but that the appellant abstract all that is necessary. In case of difference of opinion as to what is necessary to a full determination of the issues presented, the appellee can abstract such further matters as he sees proper.

The substances of the evidence is always material in testing the instructions; and if it is not set out, then the only question on the instructions before the court is whether any facts would justify the instructions. It does not by any means follow that the appellant must set out all of a vast volume of testimony. On the contrary, the...